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28 June 2019
ECCN 3A001: electronic items
ECCN 3D005: continuity of operation software
ECCN 5A002: post-quantum cryptographic algorithms
ECCN 6A001: acoustic systems, equipment and 'components'
ECCN 9A004: air-launch platforms
On 23 May 2019 the Department of Commerce, Bureau of Industry and Security (BIS) issued a final rule that added five recently developed or developing technologies to the Export Administration Regulations' Commerce Control List (CCL) that are essential to US national security.
In particular, BIS amended four export control classification numbers (ECCNs) and added a new one. These changes came into force on 23 May 2019 and have an immediate impact on parties exporting the newly controlled goods. The five additions implemented changes made to the Wassenaar Arrangement List of Dual-use Goods and Technologies at the December 2018 Wassenaar Arrangement Plenary meeting. These additions are separate from the December 2018 request for comments by BIS on criteria for identifying and defining emerging technologies essential to US national security.
Below is a summary of the additions and the reasoning provided by BIS. Before exporting, re-exporting or transferring commodities that may fall into these revised and new ECCNs, the full text of the entry should be reviewed.
ECCN 3A001 was amended by adding Paragraph b.3.f in order to control discrete microwave transistors ''rated for operation with a peak saturated power output greater than 5 W (37.0 dBm) at all frequencies exceeding 8.5 GHz up to and including 31.8 GHz". BIS also amended Note 1 following Paragraph b.3.f. so that the control status of a transistor in Paragraph b.3.f. is not determined by the lowest peak saturated power output control threshold.
BIS explained that it added Paragraph b.3.f. because "new microwave transistors cover wider frequency bands at higher power levels which open up new possibilities for radar and other transmitting applications". Among other uses:
wideband semiconductors will likely be a technology used in new electrical grid and alternative energy devices, in which such semiconductors will reduce energy loss and enable longer performance life in solar and wind energy power converters and eliminate bulky grid substation transformers. In addition, these robust and efficient power components are expected to be used in high energy vehicles, including electric trains and plug-in electric vehicles. It has been predicted that wideband semiconductors will facilitate simpler and higher efficiency charging for hybrid and all-electric vehicles.
ECCN 3D005 was added to the CCL to control software that ensures continuity of operation when electronics are exposed to an electromagnetic pulse or electrostatic discharge.
BIS explained that:
research and development activities related to integrated circuit software that provides electromagnetic pulse (EMP) protective function to electronic devices is currently underway, and it is predicted that these products will be in the commercial marketplace in a few years. Because continuity of operation software would also be beneficial to military applications, it was added to the CCL in this final rule.
BIS made several changes relating to cryptographic algorithms.
First, ECCN 5A002 was amended to add a control on certain types of post-quantum cryptographic algorithm. BIS added Paragraph 2.c to the technical notes that follow Paragraph 5A002.a.4 to include a new paragraph addressing certain post-quantum asymmetric algorithms.
Second, BIS revised Paragraph 5A002.a, Paragraph 5A002a.4, Paragraph 2 of the technical notes that follow Paragraph 5A002.a.4, Paragraph a.1.a.1.b in Note 2 to Paragraph 5A002.a and Paragraph (4)(a) of Related Controls to Paragraph 5A002 to replace the phrase "in excess of 56 bits of symmetric key length, or equivalent" with "described security algorithm". The new phrase is used for technical accuracy since methods for establishing equivalence between modern classical and post-quantum cryptography are not settled.
Third, the nota bene to Note 3 (the Cryptography Note) was revised to specify that items that include post-quantum asymmetric algorithms described by the new Paragraph 2.c. of the technical notes are subject to the classification or self-classification reporting requirements for mass market items.
Post-quantum asymmetric algorithms were added to the CCL to address concerns that when large-scale quantum computers are built, they will likely undermine the security of the current cryptographic systems (symmetric algorithms based on key length and asymmetric algorithms based on integer factorisation or the computation of discrete logarithms). Because such algorithms are becoming increasingly common, this control was added to ensure that there is consistent treatment and a level playing field between modern classical and post-quantum cryptography.
ECCN 6A001 was amended by moving the note previously located below Item Paragraph a.2.g.4 to below the introductory Item Paragraph a.2. for better readability. This note informs the public that Item Paragraph a.2 ''applies to receiving equipment, whether or not related in normal application to separate active equipment, and 'specially designed' components therefor''. This rule also adds Technical Note 2 after Paragraph a.2.a to alert the public that underwater acoustic transducers designed to operate as passive receivers are hydrophones. This rule revises Paragraph a.2.a.6 to add the parameter ''and having a 'hydrophone sensitivity' better than - 230 dB below 4 kHz'', to remove any transducers or hydrophones that are not of strategic concern.
According to ECCN 6A001:
An underwater transducer that is designed to operate as a hydrophone, designed for operation below 1000 m and that has a useful sensitivity below 4 kHz, is being controlled because of its utility in Anti-Submarine Warfare (ASW).
BIS explained that:
these amendments will bridge the control gap that previously treated underwater acoustic transducers and receivers separately. Newer underwater acoustic devices can more readily operate in both transmit and receive mode. The new control structure resulting from these amendments allows each aspect of these multifunction devices to be evaluated.
ECCN 9A004 was amended by revising the heading to add air-launch platforms. The rule added a new Item Paragraph 9A004.g, which controls aircraft specially designed or modified to be air-launch platforms for space launch vehicles. The licence requirements table is revised to add Item Paragraph 9A004.g to the national security and anti-terrorism licence requirements paragraphs.
Air-launch platforms were added to ECCN 9A004 because of commercial entities that are building space-bound craft that will use an air launch rather than traditional ground launch:
Originally, military aircraft were used for air-launched rockets to carry satellites specifically for military applications. Now, air-launch platforms allow the use of specialized commercial aircraft instead of rockets or military aircraft to facilitate the transport and launch of commercial satellites. The increase in commercial space activities has commercial satellite owners and space tourism companies moving toward air-launch platforms to support their endeavours [sic].
For further information on this topic please contact Marwa M Hassoun at Arent Fox LLP's Los Angeles office by telephone (+1 213 629 7400) or email (email@example.com). Alternatively, contact Aman Kakar at Arent Fox LLP's Washington DC office by telephone (+1 202 857 6000) or email (firstname.lastname@example.org). The Arent Fox LLP website can be accessed at www.arentfox.com.
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